Opening Statements: Tips on Opening Statements from David Ball
Trial Practice Tips on Opening Statements from David Ball from the Illionois Trial Practice Blog
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Trial Practice Tips on Opening Statements from David Ball from the Illionois Trial Practice Blog
From the Federal Civil Practice Bulletin:
Per Murphy v. IRS , --- F.3d ----, 2007 WL 1892238 (D.C. Cir. July 03, 2007) (NO. 05-5139):
. . . [I]n 1996 the Congress amended § 104(a) to narrow the exclusion to amounts received on account of "personal physical injuries or physical sickness" from "personal injuries or sickness," and explicitly to provide that "emotional distress shall not be treated as a physical injury or physical sickness," thus making clear that an award received on account of emotional distress is not excluded from gross income under § 104(a)(2). Small Business Job Protection Act of 1996, Pub.L. 104-188, § 1605, 110 Stat.click on heading for his entire post!
I copied my post en toto from the Kentucky Law Blog/Review since it is classic tort and insurance subject - Nonpublished COA Decision Upholds Mediation Agreement Even Though Insurer forgot about the PIP - Epling v. Lib. Mutual Ins. Co.. Although the decision is directly applicable to a settlement agreement, the underlying pricipals involving a single cause of action and its implications on a settlement might/should apply with equal force on first party claims with a bad faith count included. A single cause of action has come into play in statutes of limitations, property damage vs.personal injury, and now settlement agreements. Can it have force in UIM advances and bad faith scenarios?
In Epling, the decedent's estate pursued a claim for the decedent's wrongful death in a car accident asserting claims against the tortfeasor and the decedent's underinsured motorist carrier, Liberty Mutual. Liberty Mutual had also paid a total of $70,000 in added and basic reparation benefits as a result of the accident.
At the mediation, the parties had settled as follows:
The settlement was allocated with $235,000 for the wrongful death of Hiram McCoy; $10,000 for personal injury to Hiram McCoy; and $10,000 to Barbara McCoy for loss of consortium. Liberty Mutual contributed $5,000 of the total payment of $255,000. After reciting allocation of the settlement amounts and in connection with the total payment to McCoy, the Agreement provides, “settlement proceeds are exclusive of PIP.” This language is commonly used in releases to clarify that no other claims, offsets or subrogation rights will reduce the Plaintiff’s receipt of the total settlement amount.
* * *
However, the Agreement provides that it includes “all parties” and “all claims.” Specifically, the Agreement states:IT IS HEREBY AGREED by and between the parties hereto
that all claims contained therein between the parties to this
Agreement are fully and finally settled with the Plaintiff
receiving a total settlement of $255,000 from the defendants
in exchange for which the Plaintiff agrees to execute a full
and final Release of all claims including Underinsured
Motorist Claims (UIM) against said Defendants arising out of
this litigation and an entry of dismissal with prejudice, with
each party to this litigation paying the parties respective court
cost and attorneys fees. (Emphasis added).* * *
Unfortunately, Liberty Mutual’s counsel was unaware of [pip] these payments and did not raise subrogation issues during mediation. Nor had Liberty Mutual’s counsel asserted any subrogation rights after being sued. It is now clear that no cross-claim was made by Liberty Mutual against any party for recovery of basic or added reparation benefits because counsel for Liberty Mutual was simply unaware of these payments.Liberty Mutual raised the unilateral mistake and the release agreement to effect the mediation settlement agreement hit a snag.
However, the COA held the unilateral mistake was not enough to get around the clear and unambiguous language of the mediation agreement which settled all claims of all parties and required a dismissal with prejudice.
In holding Liberty Mutual's feet to the fire for representations made by it and relied upon other parties, Judge Dixon writing for the panel stated:
The problem of this case arose when Liberty Mutual and its attorney were apparently unaware of the earlier payments. This mistake on Liberty Mutual’s part was a subjective mistake. If Liberty Mutual was allowed to proceed with the subrogation at this time, it would be in derogation of the settlement proceeding that guaranteed the $255,000 payment to McCoy. It would also violate the long established rule against splitting a cause of action. Kirchner v. Riherd, 702 S.W.2d 33 (Ky. 1985); Egbert v. Curtis, 695 S.W.2d 123 (Ky. App. 1985); and Hayes v. Sturgill, 302 Ky. 31, 193 S.W.2d 648 (1946). These cases acknowledge a long, well established history of pleading that requires all claims that arise out of the same facts to be litigated together. To hold otherwise would result in piecemeal litigation. This rule is essential to efficient management litigation (sic).
Now, if the law is a moving stream, then one can only assume, expect and hope that the stream flows smoothly and in the same direction after accounting for the natural eddies and changes in the current. The courts have applied the rule against splitting a cause of action to statutes of limitation and now settlements, not to mention property damage claims and personal injury claims cannot be split either.
Now will the courts be consistent and that the "well established history of pleading that requires all claims that arise out of the same facts to be litigated together" apply with equal force and effect against the insurance company in a first party claim? When an insured sues on a contractual uninsured/underinsured motorist claim, he is required by this rule to assert all claims (including statutory and common law bad faith). If he/she is required to bring those claims, and there is obviously no prejudice to another party or tortfeasor, then there really should be no basis for splitting the trial and join all claims to the jury as an "efficient management litigation (sic)."
The facts are the facts, and each party in a lawsuit must live with those actions and conduct. The reasons for bifurcating a bad faith claim from a pure contractual first party claim don't hold water when compared to the underlying third party claims and claims against a tortfeasor identified at trial.
Now this adds another twist of the screw when the "official" reason for "advancing" funds under KRS 304.39-320 and Coots v. Allstate is to preserve subrogation rights.
Would it be legitimate for an undersinsured motorist carrier to advance the liability limits when there are no assets upon which to assert or protect those subrogation rights and the "apparent" reason for advancement would thus be "trial strategy" (eg., identifying a tortfeasor to the jury as the person ultimately bearing financial responsibility for the verdict and to insure bifurcation of any bad faith claims)?
As most may know, this is a lot of speculation and thinking outside the box. But the questions are nonetheless intriguing.
LOUISVILLE LAWWIRE FOR JULY 6, 2007 VOL. 2007:33
PUBLISHED TORT, INSURANCE AND PROCEDURE DECISIONS FROM COA JULY 6, 2007
This appeal had it's genesis in a dispute over an estate administration. Cummings (children of Covey) obtained the removal of their mother Covey as executrix of their grandmother Shirley Cummings' estate. A jury returned a verdict finding that Covey had indeed breached her duties as executrix, but ordered her to repay the estate only $3,826.00, far less than the amount sought. Don Cummings et. al. brought a motion pursuant to KRS 412.070 seeking $10,000 in attorney fees, over and above the judgment. The
Although the trial court granted appellant's motion by awarding attorney fees of $8,000.00, the trial court effectively limited that award by allowing recovery of the fee only from the funds recovered from the Appellee, Peggy Ann Covey pursuant to a judgment already awarded against her in the sum of $3826.00. Appellant appealed, and COA AFFIRMED the trial court's award.
Kentucky has long followed the “American Rule,” that in the absence of a statute or contract, attorney fees are not allowable as costs, nor recoverable as an item of damages. (see, eg., Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129 (Ky. 1963); Holsclaw v. Stephens, 507 S.W.2d 462 (Ky. 1973), disapproved on other grounds by Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10 (Ky. 1977)).
KRS 412.070(1) is clear on its face. By using the mandatory term “shall,” the statute unequivocally requires that attorney fees awarded under this statute must be paid from the funds recovered. “Shall means shall.” Vandertoll v. Commonwealth, 110 S.W.3d 789, 796 (Ky. 2003).
Though there are a few cases indicating that a trial court may have the discretion to award attorney fees in certain situations beyond the general rule, acting in equity. Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754 (Ky. App. 1984) and Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762 (Ky. App. 2005), the COA noted that exactly what circumstances would justify this exception to the general rule have never been spelled out.
In short, KRS 412.070(1) sets forth specific situations in which attorney fees may be awarded in suits “for the settlement of estates,” and only “out of the funds recovered.” It does not in any way authorize the award of a separate fee against a wrongdoer, beyond the amount of the recovery. COA concluded it had no latitude to decide, even if it might seem equitable, to do what the statute does not permit. The judgment of the Clinton Circuit Court is affirmed
By Michael Stevens
MORGAN KEEGAN & CO. INC. V. FORCE
ARBITRATION & MEDIATION:
2006-CA-000311
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; KELLER, BUCKINGHAM CONCUR
COUNTY: WARREN
DATE RENDERED: 7/6/2007
The Court upheld the lower Court’s decision to not compel arbitration as the contract required the use of Tennessee law. Tennessee law dictates that a claim of fraud in the inducement of the contract as a whole may be litigated in state court and should not have the arbitration clause compelled.
Digested by Paul Schurman
NONPUBLISHED TORT, INS., PROCEDURE DECISIONS FOR JULY 6, 2007 FROM COA
EPLING V. LIBERTY MUTUAL INS. CO.
MEDIATION & ARBITRATION: ENFORCED MEDIATION AGREEMENT OVER LIBERTY MUTUAL'S UNILATERAL MISTAKE RE SETTLING ALL CLAIMS INCLUDING PIP (EVEN THOUGH FORGOTTEN ABOUT PIP AT MEDIATION AND DENIED SUBROGATION)
2005-CA-001695
NOT PUBLISHED: 113
DATE RENDERED: 7/6/2007
LEWIS V. COUNTY OF HARLAN
SOVEREIGN IMMUNITY: COUNTY, FISCAL COURT AND STATE AGENCY IMMUNE; sovereign immunity shields “all 'departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administrative organization and structure
2006-CA-002115
NOT PUBLISHED: 85
DATE RENDERED: 7/6/2007
MEADORS V. PENNINGTON BLOCK CO., INC.
WORKERS COMP: 2X MULTIPLIED AND RETURN TO WORK AND CESSATION OF EMPLOYMENT
2006-CA-002064
NOT PUBLISHED: 92
DATE RENDERED: 7/6/2007
LONG V. AHLSTROM USA
WORKERS COMP: NO SUBSTANTIAL EVIDENCE WHEN IRREFUTABLE THAT PHYSICIAN'S HISTORY OF WORK-RELATED CAUSATION IS CORRUPT
2006-CA-002555
NOT PUBLISHED: 136
DATE RENDERED: 7/6/2007
PUBLISHED COA DECISIONS FROM JULY 29, 2007
NONPUBLISHED COA DECISIONS FROM JULY 29, 2007
PUBLISHED COA/SCOKY DECISIONS FROM JULY 21 & 22, 2007
SCOKY certified the law on two questions from the U.S. Sixth Circuit Court of Appeals arising from claims of groundwater contamination by property owners within ten miles of the Paducah Gaseous Diffusion Plant
Question No. 1: Is proof of actual harm required to state a claim for an intentional trespass? Answer: No.
When the evidence was vague as to the amount of damage, but where a trespass has been committed upon the property of another, he is entitled at least to nominal damages for the violation of his rights.
Question No. 2: If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law? Answer: Cannot be answered simply yes or no as this question confuses the "right to recover" with the "measure of damages" as a substitute "for proof of actual harm". Kentucky law allows the recovery of just compensation (not merely nominal damages) upon proof of actual injury to the real estate . Hughett, 313 Ky. at 90, 230 S.W.2d at 96.
Once the particular injury to real estate is shown, the diminution in fair market value is a recognized measure of damages. Thus, the preliminary question in a contamination case in Kentucky is at what level does the trespass evolve from a mere stigma, or damage to the reputation of the realty, into an actual injury or harm?
To reach the question posed, the Sixth Circuit must determine whether the contaminants in this case create an actual injury - an interference with an owner's use of the land. Mere damage to the reputation of realty does not entitle one to recovery, as that injury is more imaginary than real. Likewise, the mere presence of contaminants may only damage the property's reputation and not its use . The Court of Appeals in Rockwell, 143 S .W.3d at 604, set the bar for a compensable harm in negligent trespass cases to fall at the point where the contaminants cause a health hazard. Relying on the rationale in Wood v. Wveth-Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002), a products liability case with a question as to "harm to the person," the Rockwell court reasoned that the mere presence of PCB's itself was not an injury, that some physical harm needed to be shown.
SCOKY then noted it was not as forgiving in identifying actual injury to real property, whether by intentional or negligent trespass . When the intrusion is through imperceptible particles not visible to the naked eye, there may still be an actual injury. An intrusion (or encroachment) which is an unreasonable interference with the property owner's possessory use of his/her property is sufficient evidence of an actual injury (or damage to the property) to award actual damages.When the parcel's groundwater is contaminated, whether by imperceptible particles or visible particles, to the extent that it cannot be used for consumption by humans, animals, or crops, there is an actual injury.
The amount of harm, if any, to the individual parcels, and the corresponding measure of actual or compensatory damages will depend upon the proof introduced at trial - an issue of fact.
To the extent that the property owners prove actual or compensatory damages for the harm (the cost of restoring the property to the pretrespass condition), "the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery." Thus, the diminution in the property's value due to an intentional trespass is a recognized measure of damages after, or if, an actual injury has been found.Digested by Michael Stevens
In this wrongful death case, the jury awarded the appellees $3,767,267 in damages, which included $1 million in punitives and $100,000 in pre-impact fear damages. Melissa Congleton died at the scene when improperly secured steel coils fell off a truck and struck her car, killing her almost instantly. The trial judge granted a directed verdict for the defendant denying any claims for pain and suffering after the impact but instructed the jury on pre-impact fear. On appeal the issues centered on insufficiency of the evidence, pre-impact fear, and punitive damages. In striking down appellant’s motion for judgment NOV, the Supreme Court held it was the appellant’s duty to preserve a complete record on appeal, and failure to prove that it had made a mid-trial directed verdict motion was fatal to its post-trial claim regarding the insufficiency of the evidence. Even though a portion of the trial was not recorded, the Court concluded appellants were not without other means to preserve the record and vague comments during jury instructions regarding objections did not suffice. The award for “pre-impact” fear damages was reversed based upon Kentucky’s adherence to the “impact rule”. Emotional distress must be caused by the contact and not just accompanied by the contact. The punitive damages award did not violate due process as some level of reprehensibility was present and when compared to the amount of direct compensatory damages awarded.
Digested by Michael Stevens
This case addresses the difference between an ”unexplained fall” and an “idiopathic fall”. The difference is important in workers’ comp because injuries which arise from an unexplained fall at work are work-related while those caused by an idiopathic fall are not. The employee was unloading coal cars and fell over backwards injuring her shoulder. She did not testify that she tripped or slipped, but she guessed that she lost her balance, although she did not know. She also testified that she previously sought treatment for feeling off balance. However, she did not testify that she lost consciousness. The Administrative Law Judge ruled that this was an unexplained fall, and applied a presumption of work-relatedness in unexplained falls established by the Courts in Coomes v. Robinson Lumber, 427 SW2d 809 (Ky. 1968). The employer appealed arguing that the Courts could not create such a presumption where the legislature has not done so. The Workers’ Compensation Board affirmed, as did the Court of Appeals. The Court cited to Larson’s Workers’ Compensation in reasoning that, but for the employment and being on the job, the worker would not have been injured. Whereas, if the proof is that a medical condition such as a seizure or blackout condition caused the fall, then it is personal to the claimant and not related to the work, therefore, not a compensable injury.
By Peter Naake
NONPUBLISHED COA/SCOKY DECISIONS FOR JUL 21, 23, 2007
PUBLISHED COA DECISIONS FROM JUNE 15, 2007 ON TORTS, ETC.
This is a premises liability tort case which attempts to use the Kentucky Occupational Health and Safety guidelines to hold a premises owner liable to third party invitees, in this case Pennington, who was an employee of a contractor performing repairs at Midwestvaco. The Court held that Midwestvaco was not Pennington’s employer, and therefore OSHA standards did not apply to its duties to Pennington. The Court upheld the trial Court’s dismissal on summary judgment because Pennington was warned of the danger on Midewesvaco’s premises.
By Peter Naake.
NONPUBLISHED COA DECISIONS FROM JUNE 15, 200Y ON TORTS, ETC.
